Flanagan v. Commonwealth of Va..

• Citation: 714 S.E.2d 212,58 Va.App. 681
• Decision Date: 30 August 2011
• Docket Number: Record No. 0781–10–3.
• Parties: John FLANAGANv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

58 Va.App. 681

714 S.E.2d 212

John FLANAGAN

v.COMMONWEALTH of Virginia.

Record No. 0781–10–3.

Court of Appeals of Virginia, Salem.

Aug. 30, 2011.

Wade M. McNichols for appellant.Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: FELTON, C.J., ALSTON, J., and ANNUNZIATA, S.J.ALSTON, Judge.

John Flanagan (appellant) appeals his conviction of possessing or manufacturing explosive materials, in violation of Code § 18.2–85. On appeal, appellant contends that Code § 18.2–85 is unconstitutionally vague; that the trial court violated appellant's due process rights by requiring appellant to show that he possessed or manufactured explosive materials or devices for an educational purpose, a scientific purpose, or any lawful purpose; and that the trial court erred by denying his motions to strike the evidence at the close of the Commonwealth's case-in-chief and at the close of all of the evidence. For the reasons expressed below, we affirm appellant's conviction.

I. BACKGROUND

“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’ ” Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)).

Appellant operated a business that manufactured 1920s-style iceboxes. In June 2008, two of his employees quit their employment. John Emmons (Emmons) quit because appellant kept explosive materials in the workplace. Emmons testified at trial that he never saw appellant construct a bomb, but he did find remnants of explosive devices composed of beer cans, plastic straws, and fuses. Emmons further testified that appellant purchased chemicals that were not related to the business' manufacturing needs and that appellant informed Emmons that the chemicals “were for making bombs.” According to Emmons, appellant informed Emmons that the chemicals were “the same stuff that was used in the London train bombings....”

William Padgett (Padgett) terminated his employment with appellant's company at the same time as Emmons. At trial, Padgett testified that he quit for a number of reasons, including appellant's actions in “making the bomb stuff”; arguments between appellant and Emmons; and appellant's failure to timely pay Padgett. Padgett testified that he had seen explosive materials in the workplace. Specifically, he stated that he had seen a glass beaker with a white substance floating in liquid. He also testified appellant had once detonated a firecracker in his presence. Padgett stated that appellant told him he was making explosives “[j]ust to see if he could do it....” At no point did appellant indicate to Emmons or Padgett that he wished to injure anyone or destroy any property with the explosive devices.

On June 11, 2008, FBI Special Agent D. Fender, along with other federal and state law enforcement authorities, executed a federal search warrant at appellant's business. Appellant was present during the search of the premises, and the officers informed him that they were searching for materials used to manufacture explosives. Appellant directed the officers to a metal cabinet where he stated he stored a white powdery substance that he referred to as “acetone peroxide.” This highly volatile explosive material is commonly known as triacetone triperoxide or TATP. In the same cabinet, Special Agent Fender found a “hobby” or “cannon” fuse, red drinking straws, and a “.223 caliber assault-type pistol.” The officers also observed a five-gallon bucket of 50% hydrogen peroxide, a container of acetone, and several jugs of sulphuric acid. Appellant told the officers that he used the acetone and sulphuric acid for business purposes, but that he purchased the hydrogen peroxide for the sole purpose of manufacturing explosives. Appellant explained that he “liked to experiment” and “he just liked to hear things go boom or to go bang.” Appellant told officers that he did not have a permit authorizing the possession of the explosives. He further stated that he had made a batch of TATP the week before that was comparable in size to the sample found in the cabinet by the officers.

A grand jury indicted appellant for possessing materials with which explosive materials, devices, or fire bombs could be made with the intent to manufacture explosive materials, devices, or fire bombs, in violation of Code § 18.2–85, or manufacturing or possessing explosive materials, devices, or fire bombs, in violation of Code § 18.2–85. Appellant's first trial, which occurred in October 2009, ended in a mistrial after the jury was unable to reach a unanimous verdict. Appellant's second trial, the trial at issue in the instant appeal, began on March 2, 2010.

At trial, Dr. Kirk Yeager, an explosive device examiner employed by the FBI, ¹ testified regarding the volatility of TATP. He stated that it was made by combining acetone and peroxide and then adding a strong acid, such as sulphuric acid, to initiate a chemical reaction. Dr. Yeager testified that the chemical reaction produced a white powder substance, which could look like a white crystalline powder, flour, or grains of rock salt. According to Dr. Yeager, TATP in this form “is one of the more sensitive explosives out there” and an explosion can be initiated by friction, impact, or static energy. Dr. Yeager further stated that there were no standard commercial or military uses for TATP because it is “too dangerous, too unstable, [and] too chemically reactive” to be used safely.

At the close of the Commonwealth's case, appellant moved to strike the Commonwealth's evidence. He argued that the Commonwealth had failed to present evidence that appellant had possessed the explosive materials for an unlawful, non-educational, or non-scientific purpose pursuant to Code § 18.2–85. ² The Commonwealth responded by arguing that Code § 18.2–85 established an affirmative defense. The trial court agreed with the Commonwealth's position and overruled appellant's motion to strike the Commonwealth's evidence.

Appellant testified on his own behalf at trial. He testified at length about how and why he produced the TATP and the small explosive devices. He stated that he was interested in fireworks and researched TATP after hearing media reports about the “bombing in London.” After learning that TATP's components were readily available at local stores, he decided to produce the substance in his shop, because he doubted the news reports describing TATP's volatility. He further stated that he manufactured TATP to satisfy his own curiosity and that he did not plan to hurt anyone or destroy any property with the explosive devices that he constructed.

At the conclusion of the presentation of evidence, appellant again moved to strike the evidence. He again argued that the evidence did not show he possessed and used the explosive materials for any unlawful purpose. The trial court again denied appellant's motion to strike the evidence.

The trial court prefaced one of his instructions to the jury stating that “[t]he Defendant relies on the defense that he used, manufactured or possessed explosive materials or devices solely for scientific research, educational purposes or for any lawful purpose.” The trial court then issued the following instruction:

If you find from the evidence that the defendant used, possessed or manufactured explosive materials solely for scientific research or educational purposes or for any lawful purpose, you must find the defendant not guilty.

The defendant is not required to prove beyond a reasonable doubt that he used, possessed or manufactured explosive materials solely for scientific research, educational purposes or for any lawful purpose, rather he must have provided sufficient evidence of these facts for you to find that a reasonable doubt exists as to his guilt.

The jury instructions further defined “lawful purpose,” “science,” “scientific research,” “research,” “educational purposes,” and “education.”

After deliberation, the jury found appellant guilty of “knowingly and intentionally manufacturing, possessing or using an explosive device or explosive materials; or possessing materials with which explosive devices or explosive materials can be made with the intent to manufacture explosive devices or explosive materials as charged in the indictment.” It ordered appellant to pay an $1800 fine. Appellant subsequently moved to set aside the jury verdict. The trial court overruled this motion. After the sentencing order imposing the jury's recommended sentence was entered on March 10, 2010, appellant again moved to set aside the jury verdict. He asserted the evidence was insufficient to sustain the conviction and, for the first time, argued that Code § 18.2–85 was unconstitutionally vague. Again, the trial court denied appellant's motion. This appeal followed.

II. ANALYSIS

A. Challenge of Code § 18.2–85 on vagueness grounds

On appeal, appellant argues that Code § 18.2–85 is void for vagueness. Because appellant failed to raise this issue before the trial court, he failed to preserve this issue for appellate review pursuant to Rule 5A:18. This Rule stated at the time of appellant's trial that “[n]o ruling of the trial court ... will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling....” ³

Appellant was tried for the same charge in October 2009, but the jury was unable to reach a verdict, and the trial court declared a mistrial. Appellant's second trial occurred in March 2010 and it is this trial that is the subject of the instant appeal. Prior to the first trial, appellant moved to dismiss the possession of explosive materials charge on the grounds that Code § 18.2–85 was unconstitutionally vague. This motion was denied. At the second trial, while appel...